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2014: The year Senior Judge Lush settled the test to appoint a Deputy

Three times in 2014 Senior Judge Lush considered the test for the appointment of a Property & Affairs Deputy.  In a series of cases in 2014 the test (first set out with clarity in 2013) was reaffirmed and expanded upon by Judge Lush and whilst they overlap, they make interesting reading – all three should be read together.

In 2013 in Re M, N v O & P [2013] COPLR 91 Judge Lush set out the hierarchy of whom the court should appoint when faced with competing applications to be appointed Deputy:
“generally speaking the order of preference is-
• P’s spouse or partner;
• any other relative who takes a personal interest in P’s affairs
• a close friend;
• a professional adviser, such as the family’s solicitor or accountant;
• a local authority’s social services department; and finally
• a panel deputy, as deputy of last resort.”

In January 2014 in Re ES [2014], Judge Lush held:

“[There are, of course, cases in which the court would never dream of appointing a particular family member as deputy. These include, but are not confined to, situations in which:
(1) there has been physical or financial abuse;
(2) there is a conflict of interests;
(3) the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs; and
(4) there is ongoing friction between various family members that is likely to interfere with the proper administration of P's affairs.”

In May 2014 in Re GW, London Borough of Haringey v CM [2014] EWCOP B23, in refusing a family member’s application to be appointed Deputy and instead appointing the Local Authority, Judge Lush stated:

“Suffice it to say that nobody has an automatic right to be appointed as a deputy. The Court of Protection has discretion as to whom it appoints, and it must exercise that discretion judicially and in the best interests of the person who lacks capacity...”

Finally, in Re EU (Appointment of Deputy) [2014] EWCOP 21, heard in July 2014, Judge Lush held:

“The main reason for preferring family members to strangers, as a starting point, has been respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, practical reasons for choosing a family member.

A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.”

Helpfully, the test for the appointment of a Deputy (perhaps one of the few areas in the Court of Protection...) appears to be settled and clear.

Duncan Maxwell-Stewart
March 2015

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